Duck Limits & Strict Liability

[Jefferson]

Try this link to access the opinion. My only intent in conveying the information is to make you aware of this development. Nothing stated or included is intended to be legal advice in any shape form or fashion.

Duck Limits & Strict Liability

[AccountingDucks]

Hey Judge J.B.,

Did you read this case? What are you thoughts? and what about Judge Jones comments

What EDITH H. JONES, Circuit Judge, specially concurring:
"While I agree with the panel's conclusion that current caselaw requires this statute to be construed as a strict liability offense, I note that Dr. Morgan did not base his defense on the meaning of "possession" under § 703.
That is, he did not argue, and this opinion does not reach, whether the "possession" of migratory birds prohibited by § 703 must be more than merely constructive, incidental, or transitory. Otherwise, affixing strict
liability for violating this statute could easily lead to absurd consequences, such as the criminal conviction of a hunter who was simply carrying the ducks of a disabled friend. The law should not be construed to
invite absurdities."

[Hambone]

The concurring opinion does at least open up the possibility of a defense in future cases, but the bottom line is going to depend on the discretion of the conservation officer involved. Common sense supports Dr. Morgan's defense in this case, but with a strict liability offense, his good intentions do not matter, because his intent is considered legally irrelevant. It looks to me that the Louisiana officer was out to make a case, no matter the facts of the situation. He could have just as easily looked the other way and cut him some slack, as I have seen some wardens do in cases of technical, though good-intentioned violations. The Fifth Circuit governs Mississippi as well as Louisiana, so you had best be very particular about having others' ducks in your possession.

[CaptnT]

I have stopped myself from commenting on this subject a few times in the past, but since this is the "off season", I think I will post it now.

More than likely we all have been pulled over by an officer of one kind at one time or another. My father was/is one of those guys that likes to get real smart with cops. I remember sitting in the car several times with my father after getting just a warning from a cop, only to piss him off and get a ticket. He once even tore one up and threw it at the cop, only to be pulled from the car, handcuffed, while my mother drove us all (younger brother and older sister) to the station to bail the old man out. I'll never forget that.

That taught me a valuable lesson.

Whenever I am confronted with ANY law enforcement officer, I am a "yes sir, no sir" man. Even if I feel I am being unfairly accussed, I am as polite as I can be. It always works for me.

I got the opportunity to do some reserve duty with the Desoto County Sheriff's Dept years ago, and I rode along a few days a month. I couldn't believe the things that officer's have to put up with. I think it is refreshing to them when someone treats them with respect. Sure, there are some real jerks in uniform out there, but the majority of them have been disrespected so many times they become hardened.

I certainly don't know the facts in this case, but from what I read the "doctor" probably got a little smart with the officer. I may be wrong, but as some of you know, alot of these doctors are full of themselves. The officer might have given him a little slack had he been polite.

Like I said, I may be wrong about the doctors attitude, but I doubt it. Just from reading the case it seems the doctor is very argumentative.

Next time you are pulled over or checked by an officer, try a little respect, it can go a long way.

[Swamp Rat]

This thread sheds some light on the dangers of being a good ol boyand picking up a bird for another blind! HMMMMM What about a guided hunt in the Ark. timber and being "the Dog handler" for the group and the warden steps up and you have 25 ducks.
I dont think I would even want to be standing close to that fellow. I have read articles where the group shoots until the total limit is reached, rather than each hunters individual harvest. Some shoot to many and others not enough. Just some thoughts. I shoot mine or not and you shoot yours, or not! You never know when you are on Federal Video. I have seen it happen.

[Jefferson]

You may want to be aware of a decision issued this week by the US Fifth Circuit Court of Appeals in New Orleans concerning the application of strict liability in the possession of duck limits. You may not be afforded the opportunity to explain why you have more ducks in your pirouge than the limit allows. This is something important to consider if you hunt with groups of people, and particularly important if your dog is doing all of the retrieving. You can probably find a copy of the opinion at the Fifth Circuit's web site or at Findlaw.com.

[Duck Nawteek]

OHHHHHHHHHHHHHHHHHHHHHHH!!!!!!!!! [img]images/smiles/icon_eek.gif[/img] [img]images/smiles/icon_eek.gif[/img] [img]images/smiles/icon_eek.gif[/img] SOunds like this could get very messy.

[mississippi_duc_htr]

I been put in the same situation 5 years ago and they will bring up who shot what and how many in court. I didnt get a ticket or anything but the ppl I was hunting with got busted the next day and they had video on every one of us in the field from the day before. My friend and I who got invited on this hunt was the only 2 on the whole field that shot the legal limit. A friend of mine called Monday morning and told me that I would probly be getting a ticket in the mail And that we had gotten out picture taken on the shoot that Saturday. I told him that me and my buddy had shot the legal limit and that was all. He told me that we might get charged with group hunting. We do it the way swamp rat said you shoot yours and I'll shoot mine. One limits out first and doesnt shoot anymore. Then just trys to help call in enough for whoever doesnt have the limit. I never heard anymore about the shoot or got a ticket,but I did learn a valuable lesson they do keep count and who has shot what and how many.I had never even heard of group hunting charges until that incident because I have never been with that many people on a field.

[ February 22, 2002: Message edited by: mississippi_duc_htr ]

[Wildfowler]

Whenever I hunt in AR, our dog handler begins segregating the birds as soon as individual ducks are retrieved. Though I am not advocating an individual shooting over the limit, everyone here knows that it would be virtually impossible to determine who actually shot every single duck that was killed by a group of say, five hunters. The most prominent bird in a group usually gets shot at first by at least half of the group. Especially when there are less experienced hunters in the group. If you keep the individual birds segregated as they begin to accumulate, you shouldn't have anything to worry about. Particularly if you are hunting in an area where you are prone to being checked in the field. This should also cut down on an individual shooting most of the ducks. If I only got off one shot out of the last volley, I am going to make sure I don't wind up with two new birds on my strap! This system works very well and we've never run into any problems. At least none that I know of.

I think you are most likely to run into problems on the way back to the ramp. Wardens like to hide and wait for you when you come back to the ramp. They like to listen in waiting, to try to hear someone boasting about shooting all the birds in their hunting party. I can promise you that if the warden saw all of the birds on your 4-wheeler, they will bust you. Especially if they just overheard you running your mouth. Again, just keep the birds separated as you are shooting them, and everyone carry in their own limit and you've got nothing to worry about.

[captain duck]

CaptnT-I couldn't agree more with your assessment of the situation.One's mouth can be their biggest asset or liability.

[captain duck]

Wildfowler-How do you get so lucky as to have dog handlers separating your birds in Ark. Must be a great place. I'm still trying to train Uncle Walt to be a dog handler.

[Wildfowler]

I figured it wouldn't take too long for you to say somthin' Captain. You may recall that my dog has been upgraded to number 2 retriever this year. Too bad we never had a limit issue to worry about this year. Remember, the dog handler gets to check all birds for bands first. If it's a banded hen, you know who, claims he doesn't shoot hens. [img]images/smiles/icon_wink.gif[/img]

[ February 22, 2002: Message edited by: Wildfowler ]

[judge jb]

i have to handle a boat-load of G&F citations each year.. the majority of possesion tickets are during the opening week-end of dove season.. the officers make the rounds checking license and plugs and counting birds.. it is wise for the hunter, even if he or his dog has retrieved other hunters birds to be sure of his possesion limit. if he is over he need to disperse the birds to the other hunter who made the kill. you don't want to be caught over.. period... but in some cases an officer and Judge must use a little common sense on their decision.. if you are ticketed by an officer, kill him with kindness and come to court and tell your story if you are innocent.. i had much rather release a man who was guilty but couldn't be proven by the state, than ever convict an innocent man...

on any case, if i feel i may be fixing to punish an innocent man, then the state has failed to convince me and that calls for a dismissal....PERIOD... that is how come i sleep good at nites...

judge jb

P.S. if they don't like my decision, they can appeal to higher courts.. as long as i feel good,, they can do what they want...

[captain duck]

You know it's amazing how a banded bird can bring out the worst in us. Your #2 dog rating must mean my old hag has been downgraded to no more invites since she hasn't been back in 2 years. She's enjoying semi-retirement.